The Department of Justice renewed its legal defense of warrantless
domestic intelligence surveillance by the National Security
Agency in a 42 page white paper transmitted to Congress
yesterday.

The white paper essentially reiterates at greater length the
previous defenses articulated by the Bush Administration: (1)
the surveillance action was authorized by Congress when it
passed the 2001 resolution on use of military force against al
Qaeda; and (2) the President has inherent authority to conduct
such surveillance in any case. Both assertions are widely
disputed.

"The President -- in light of the broad authority to use military
force in response to the attacks of September 11th and to
prevent further catastrophic attack expressly conferred on the
President by the Constitution and confirmed and supplemented by
Congress in the AUMF [authorization for use of military force]
-- has legal authority to authorize the NSA to conduct the
signals intelligence activities he has described. Those
activities are authorized by the Constitution and by statute,
and they violate neither FISA nor the Fourth Amendment," the
document concludes.

See "Legal Authorities Supporting the Activities of the National
Security Agency Described by the President," Department of
Justice White Paper, January 19, 2006:

When he signed the 2006 Defense Appropriations Act, which
included a prohibition against torture of detainees in U.S.
custody, President Bush issued a signing statement implying that
he could disregard the new prohibition in his capacity as
commander in chief.

"The executive branch shall construe [the statute], relating to
detainees, in a manner consistent with the constitutional
authority of the President to supervise the unitary executive
branch and as Commander in Chief," he wrote in the December 30,
2005 statement on H.R. 2863.

The use of Presidential signing statements to create a kind of
quasi-legislative history intended to influence future judicial
rulings is a relatively new and increasingly controversial
phenomenon.

"So far as we have been able to determine, Presidential signing
statements that purported to create legislative history for the
use of the courts was uncommon -- if indeed it existed at all --
before the Reagan and Bush Presidencies," according to a 1993
memorandum from the Department of Justice Office of Legal
Counsel.

"The Reagan and Bush Administrations made frequent use of
Presidential signing statements, not only to declare their
understanding of the constitutional effect of the statutory
language, but also to create evidence on which the courts could
rely in construing such language."

Among other problems with this practice, "it is arguable that 'by
reinterpreting those parts of congressionally enacted
legislation of which he disapproves, the President exercises
unconstitutional line-item veto power'."

See "The Legal Significance of Presidential Signing Statements,"
prepared by Assistant Attorney General Walter Dellinger,
November 3, 1993:

"MS Word is used throughout the DoD and the Intelligence
Community (IC) for preparing documents, reports, notes, and
other formal and informal materials. PDF is often used as the
format for downgraded or sanitized documents."

"There are a number of pitfalls for the person attempting to
sanitize a Word document for release."

For example, "As numerous people have learned to their chagrin,
merely converting an MS Word document to PDF does not remove all
[sensitive] metadata automatically."

"This paper describes the issue, and gives a step-by-step
description of how to do it with confidence that inappropriate
material will not be released."

See "Redacting with Confidence: How to Safely Publish Sanitized
Reports Converted From Word to PDF," National Security Agency,
December 13, 2005: